Citation Nr: 1318552 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 10-23 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to cold weather injury. 2. Entitlement to service connection for a genitourinary disability, claimed as inguinal lymphadenopathy with swollen lymph nodes and urinary tract infections, to include as due to cold weather injury. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1956 to June 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In June 2012, the Board remanded these claims for the purpose of affording the Veteran a hearing before a Veterans Law Judge (VLJ). In October 2012, the Veteran and his wife testified via videoconference before the undersigned VLJ, seated at the Board's Central Office in Washington, D.C. A transcript of the hearing has been associated with the claims file. In December 2012, the Board again remanded these claims for further development, including the provision of VA examinations. Such development having occurred, the claims have returned to the Board for further review. A review of the Virtual VA paperless claims processing system does not reveal any additional records that are pertinent to this appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for a genitourinary disability, claimed as inguinal lymphadenopathy with swollen lymph nodes and urinary tract infections, to include as due to cold weather injury, is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence supports the Veteran's claim that peripheral neuropathy of the bilateral lower extremities is related to active duty service. CONCLUSION OF LAW The Veteran has peripheral neuropathy of the bilateral lower extremities as a result of an infection contracted during service. 38 U.S.C.A. §§ 1110, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See Gonzales, 218 F.3d at 1380-81. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. Veterans Claim Assistance Act (VCAA) The Veterans Claims Assistance Act (VCAA) provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran's claim of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities has been granted, as discussed below. As such, the Board finds that any error related to the VCAA on this claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection The Veteran alleges his peripheral neuropathy is related to a foot infection he contracted during active duty service, which required hospitalization in May and June 1957, and that his feet have been numb since then. For the reasons that follow, the Board finds the evidence in support of the claim, and the appeal will be granted. Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). It is undisputed that the Veteran currently has peripheral neuropathy of the bilateral lower extremities. See, e.g., VA examination dated March 20, 2013. His service treatment records (STRs) are presumed lost, destroyed by fire, however, the Veteran submitted morning reports that indicate he was hospitalized due to a foot infection in May and June 1957. Moreover, throughout the pendency of this claim, he has asserted that the specific diagnoses at that time were cellulitis and dermatophytosis. See, e.g., Claim filed November 2008; Statement dated April 3, 2009. The Veteran is competent to report what happened in service, Washington v. Nicholson, 19 Vet. App. 362 (2005), as well as to report a medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Board further finds his testimony credible. Rucker v. Brown, 10 Vet. App. 67 (when determining whether lay evidence is satisfactory, the Board may consider its consistency with other evidence submitted on behalf of the Veteran); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lay statements may not be disregarded, or found not credible, simply because they are not accompanied by supporting medical evidence). Thus, the remaining issue is whether there is a nexus, or relationship, between his current peripheral neuropathy and his in-service foot infection. In 2008, the Veteran's private physicians provided positive nexus opinions. Dr. Troyer indicated the Veteran complained of numbness in his feet since service and believed that was connected to his in-service infection. He remarked that the Veteran had no other risk factors typically seen in patients with peripheral neuropathy, and with the Veteran's onset of symptoms at that time, opined that the current diagnosis is related to the infection treated while in service. See Nerve Conduction Study dated September 25, 2008. Dr. Brooks opined that the peripheral neuropathy may be a result of possible trenchfoot in service. See Dr. Brooks letter dated October 23, 2008. At the April 2010 VA examination, peripheral neuropathy and degenerative joint disease of the bilateral feet were diagnosed. The VA examiner opined that neither was related to the foot infection in service, stating that the infection had since resolved and that there was no current infection. Without evidence of a bone or joint infection, or evidence that the infection in service resolved with chronic anatomic bony abnormalities, the examiner thought that the degenerative joint disease was unrelated to the infection. He also did not think that infection would predispose one to neuropathy, but deferred making any findings on that issue to a neurologist. See VA examination dated April 1, 2010. The November 2010 VA examiner opined against a relationship between the Veteran's current peripheral neuropathy and service, because the STRs were missing. He did opine that the Veteran's current symptoms are the result of a cold injury, but declined to attribute the cold injury to service. See VA examination dated November 30, 2010; Addendum dated March 31, 2011. The Veteran's private physician opined that the current residuals of a cold injury, which she does not clearly identify, are related to his military service. See Dr. Brooks letter dated October 14, 2011. At the March 2013 VA examination pertaining to peripheral nerve conditions, the Veteran was diagnosed with peripheral neuropathy. He has severe numbness in the bilateral lower extremities. The VA examiner, who reviewed the Veteran's claims file and took his medical history, opined that the peripheral neuropathy was as likely as not related to the foot infection that was treated during service. See VA examination dated March 20, 2013. The Board finds the March 2013 VA examination report and Dr. Troyer's September 2008 opinions to be the most probative. Both opinions were rendered with knowledge of the Veteran's medical history and following extensive diagnostic tests. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, they outweigh the negative nexus opinions that have been received, which the Board notes are not probative. The April 2010 VA examiner deferred stating an opinion, although he noted he did not think there was a nexus. The November 2010 VA examiner based his opinion on the lack of records from service, which is not appropriate. See Nieves-Rodriguez, 22 Vet. App. at 302; Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that a medical opinion was inadequate where medical examiner impermissibly ignored the veteran's lay assertions that he had sustained a back injury during service). Accordingly, as the evidence in this case supports the claim, the appeal will be granted. ORDER Entitlement to service connection for peripheral neuropathy is granted. REMAND The remaining issue must be remanded for further development. Although the Board sincerely regrets the delay, the additional development requested will ensure procedural due process and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was provided with a VA examination in March 2013. In the examination report, the examiner opined that he did not think the Veteran's genitourinary disorders were related to the Veteran's cold weather injury and infection of the feet. He did not comment on the Veteran's lay assertions that his infection spread to the lymph nodes in his groin, causing them to swell, and that he has had frequent urination (polyuria) and urinary tract infections since that time. As such, the opinion is inadequate. It must be clear from the examiner's statements that "all procurable and assembled data" that might reasonably illuminate the medical analysis were considered. See Daves v. Nicholson, 21 Vet. App. 46 (2007). When the record leaves this issue in doubt, it is the Board's duty to remand for further development. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request that the Veteran identify any additional treatment he has received for his genitourinary disability, since December 2012. Make arrangements to obtain the records identified, including updated treatment records from Dr. Brooks and Dr. Troyer. 2. Upon completion of the foregoing, forward the Veteran's entire claims file to the examiner that conducted the genitourinary VA examination on March 20, 2013, for an addendum opinion. If the same examiner is not available, a different examiner should be asked to review the claims folder and provide the requested opinion. The examiner should diagnose all current genitourinary disorders found to be present, to include any disorder characterized by the Veteran's symptoms of frequency, dysuria, and urinary tract infections. The examiner should provide an opinion as to whether it is at least as likely as not (50% or greater probability) that any current genitourinary disorder had its clinical onset during active service or is related to any in-service disease, event, or injury; specifically to include his foot infection in May 1957 and June 1957 which resulted in swollen lymph nodes in his groin area, and/or any exposure to cold during service. The examiner should consider the Veteran's lay statements regarding his in-service hospitalization for a foot infection and exposure to cold while sleeping in fox holes, and his statements that he observed dark urine and bedwetting on occasion; as well as his lay statements of continuous symptoms after service. Specifically, the examiner should consider the Veteran's assertions that during service he slept in foxholes and had cold and wet feet, was subsequently treated for a foot infection, and that during his hospitalization for the foot infection he developed inguinal lymphadenopathy with swollen lymph nodes that resulted in his current genitourinary disability. The examiner must provide a comprehensive report, including complete rationales for all conclusions reached. If the requested opinion cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. 3. Upon completion of the above, review the claims file to ensure that the foregoing requested development has been completed. In particular, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Finally, readjudicate this claim on appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs